Material Breach of Contract
New November 1, 2009
claims that the <other party> failed to <describe>
and that such failure was a material breach of the
contract. A breach of contract is material if it deprives a
party of a substantial benefit that the party reasonably
expected to receive under the terms of the contract. If you
find that <describe> was a substantial benefit and <other
party> failed to <describe>, then you will find <other
party> materially breached the contract.
See Shah v. Cover-It,
Inc., 86 Conn. App. 71, 75-76 (2004); Strouth v. Pools by Murphy & Sons,
Inc., 79 Conn. App. 55, 61 (2003); Bernstein v. Nemeyer, 213 Conn.
665, 672, 570 A.2d 164 (1990), in which the Connecticut Supreme Court endorsed
the use of the multifactor test set forth in the Restatement (Second) of
Contracts § 241 (1981):
determining whether a failure to render or to offer performance is material, the
following circumstances are significant: (a) the extent to which the injured
party will be deprived of the benefit which he reasonably expected; (b) the
extent to which the injured party can be adequately compensated for the part of
that benefit of which he will be deprived; (c) the extent to which the party
failing to perform or to offer to perform will suffer forfeiture; (d) the
likelihood that the party failing to perform or to offer to perform will cure
his failure, taking account of all the circumstances including any reasonable
assurances; [and] (e) the extent to which the behavior of the party failing to
perform or to offer to perform comports with standards of good faith and fair
The foregoing test may be
confusing for a jury. Courts purporting to apply the test generally look to
factors (a) and (d). See, e.g., Bernstein v. Nemeyer, supra, 213 Conn.
672; Strouth v. Pools by Murphy & Sons, Inc., supra, 79
Conn. App. 60-61. Additional factors of the test should be included in the
instruction if they apply.